Brigham Young Trust Co. v. Wagener

SMITH, J.: This was an action to recover rent. Tbe defendant held under a written lease. There was a verdict for plaintiff, and, defendant having moved for a new trial, his motion was overruled, and he appeals. Some seventeen assignments of eri'or are made in this court. It is not necessary to pass upon these seriatim. The complaint alleged the making of a written lease of certain premises in Salt Lake City to Wilcken and Turnbow. The lease itself was made an exhibit. The rental was $60 per month. It then alleged that defendant had become the assignee of the lease at some time prior to October, 1891. It then alleged the rent to be due and in arrears from October 1, 1891, to November 1, 1892, and prayed judgment therefor, the amount being $780. The lease was for fifteen years from April, 1890. The defendant answered; admitted plaintiff’s title to the leased premises; also admitted the making and assignment of the lease; admitted he had not paid the rent for the period stated in the complaint, but denied that defendant had been in possession of the premises since September 30, 1891. The answer then alleges that on or about the 1st day of May, 1892, he tendered the plaintiff $480, being the rent up to June 1, 1892, but that plaintiff refused to accept the same, and informed defendant that the lease had been forfeited, and that plaintiff had taken possession of the demised premises; and it is further alleged that plaintiff had in fact taken possession. The defendant set up, by way of further answer, that the premises were vacant land, and that defendant intended to erect thereon certain buildings, but that, after plaintiff informed him [10] that his lease was forfeited, he considered he had lost all right in said premises, and took no further steps to build thereon. The answer then alleged that the plaintiff had the right to declare a forfeiture of said lease and to take possession of the premises without process of law, and that the plaintiff, by declaring a forfeiture and refusing to accept' the rent tendered in May, thereby estopped itself from claiming rent from the defendant. The lease contained the following provisions: “It is hereby agreed that if any rent shall remain due and unpaid for a period of ten days, or if default shall be made by the party of the second part in any of the covenants herein contained, then said party of the first part is hereby guaranteed. * * * the right and privilege, without notice of any sort or any process of law, and without any opposition, * * * to enter either by himself or otherwise, * * * and take full, complete, and unmolested possession.” The rent was payable monthly in advance. The court instructed the jury, in effect, that defendant was liable for rent until the plaintiff did in fact re-enter. A re-entry was pleaded, as we have seen, but there was no evidence to support the plea of such re-entry prior to November 1, 1892. The defendant, in this court, expressly waives this defense, and admits there was no eviction in fact, but relies upon the matters of estoppel pleaded. It is not necessary to recite the evidence in the case; it is sufficient to say that it tended substantially to prove the facts alleged in the answer as an estoppel. The court having disregarded the plea of estoppel in its charge to the jury,- and exceptions to the charge and refusals to, charge as requested by defendant on this subject having been properly saved, the question is squarely, presented whether the facts pleaded constitute an equitable estoppel against the plaintiff. As we understand the rule, matters pleaded by way of equitable estoppel must [11] be of snob character, and sufficient, as pleaded, to make a cause of action for deceit on the part of the defendant. The- rule is stated in language of infinite variety in the many cases that have arisen in the courts. In Branson v. Wirth, 17 Wall. 32, the supreme court of the United States say: “If one person is induced to do an act prejudicial to himself in consequence of the acts or declarations of another on which he had a right to rely, equity "will enjoin the latter from asserting his legal rights against the tenor of such acts or declarations.” In Dickerson v. Colgrove, 100 U. S. 578, upon the same subject the supreme court say: “He who. by his language leads another to do what he would not otherwise have done shall not subject such person to loss or injury by disappointing the expectations upon which he acted.” It is not necessary to quote from other authorities; the rule is easily deducible from these. It is this: In order to create an estoppel of this character, it is necessary that the plaintiff, either by language or conduct should have — First, falsely represented or concealed a material fact; second, the false representation or concealment must have been knowingly made; third, the party pleading the estoppel must, have been ignorant of the fact; fourth, the representation must have been made with the intention that it should be acted upon; fifth, the party pleading it must have been misled thereby to his injury in some substantial particular. Tested by this rule, does the matter pleaded as an estop-pel in the case at bar fulfill the requirements? We think it is clear that it does not. It may be admitted, for the purpose of this case, that the representation of the plaintiff that it had re-entered and had forfeited the lease was false, and intentionally made to deceive the defendant. There is nowhere a hint in the answer that defendant was ignorant of the real facts. This is a vital matter in any plea of equitable [12] estoppel or complaint for deceit. If the plaintiff knew tbe truth, he had no right to rely upon a falsehood; and in a plea of this kind it is imperative that he should show his want of knowledge. Then, again, this plea fails to disclose any substantial injury. The only matter of which defendant complained in this regard is that he forbore to construct a building which he contemplated erecting. Whether it would have been to the advantage of the plaintiff or not if he had been permitted to erect the building is left wholly to conjecture. There is nothing in the answer that even intimates that it would have been profitable to defendant to have constructed such building! It may have been greatly to his advantage that he did not build. Suppose the defendant were suing the plaintiff for deceit, and were to allege the making of the lease in this case, and his default in the rent, and then allege that the plaintiff here had represented to him that it would not declare any forfeiture of the lease, and that it had not re-entered; that he considered his lease to be in full effect, and therefore contemplated erecting a building on the premises; but that plaintiff in fact had re-entered and forfeited the lease. Would it be claimed for a moment that the complaint stated a cause of action? We think not. The plea in this case must be tested by the same rule. The only defense well pleaded was eviction in May, 1892. This defense was not proved, and, as we have said, was expressly waived in this court.- But for this defense, the plaintiff would have been entitled to judgment on the pleadings. We are therefore of opinion that the judgment of the court below should be, and it is, affirmed. Bartch and King, JJ., concur.